Sedgmen v Waverley Council [2014] NSWLEC 1041 | Case summary

Sedgmen v Waverley Council [2014] NSWLEC 1041 | Case summary | Zoe

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Planning controls 5Section 149A of the Environmental Planning and Assessment Act 1979 contains the discretion available to the Council to issue a Building Certificate. Section 149D then provides the following obligations: 149D Obligations of council to issue building certificate (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993: (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate. (4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a). (5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work. 6Section 149F(3) relevantly states: On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate.

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Submissions 7Council's main concern with the issue of a Building Certificate is that it would not be appropriate because there is no approved use for the courtyard. Council's preferred procedure is for the applicant to submit a development application to enable the use to be assessed and likely formalised. 8The applicant's submission against this proposition is that this concern should merit the refusal of the Building Certificate because: (1)The proper scope of the Court's power and discretion conferred by s 149F of the Environmental Planning and Assessment Act is that the question of whether there is consent for the use of the beer garden/courtyard is not relevant to the present appeal. (2)The evidence before the Court and the circumstances of the case are relied upon to demonstrate that, as a matter of discretion, there are good reasons for the grant of the building certificate sought on the merits. (3)Council's contention is dealt with on its own ground and it is demonstrated that there exist at least two prior development consents supporting the use of the beer garden/courtyard as such. 9On the first point, Mr Ireland submits that the role of the Court and the power of the Court to grant a building certificate under s 149F in these proceedings is well established in the case law and is a broader power than that which reposed in Council itself: Ireland v Cessnock City Council [1999] NSWLEC 153, (1999) 103 LGERA 285 at [58], APN Outdoor v Council of the City of Sydney [2011] NSWLEC 1131 at [24]. 10The principal consideration for the Court is the structural adequacy of the building or structure erected without consent. Although in a case (as here) where there is no concurrent application for development consent for the future use of the structure the Court may consider the question in terms of the assessment of a counterfactual or "notional application" for development consent assumed to have been lodged prior to the erection of the structure: Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [32] and [60]; Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311 at [37]-[39]. 11The submission is that whilst there is doubt as to whether this "notional development application" approach is mandatory, particularly where there is in fact a concurrent application for development consent, that is not the present case: Mineral Wealth v Gosford City Council (2003) 127 LGERA 74 at [40]-[43]. It is not contended that the Court must approach this matter through the lens of a "notional development application", merely that some of the authorities cited above have found this a useful manner of approach. However, the success of this application does not depend upon the Court so approaching this appeal. 12The question of whether development consent is required for the continued use of the bleachers is a separate question to whether the building certificate should be granted in relation to its unlawful erection: Griffis v Tweed Shire Council [2011] NSWLEC 1126. The judgment in Griffis at [16], [83] and [90] is particularly clear in distinguishing the issue of consent for underlying use from the grant of a building certificate. In that case the Senior Commissioner was prepared to grant a building certificate, even though he would also refuse development consent to use the structure (which by virtue of the building certificate would be allowed to lawfully remain) as a dwelling. The two issues were found to be distinct. 13Regarding the second point concerning the merits of the building certificate application, the applicants submission is that:

The building certificate application the subject of these proceedings was lodged with Council on 26 March 2013. It was accompanied by a Statement of Environmental Effects (SEE) which explains that the subject building works relate to the construction of bleacher seating within the existing courtyard of the hotel as well as replacement of a solid masonry wall with a breeze block type construction.
The only work visible from outside the site is the 60 cm high strip of timber screening erected behind the bleachers along a 10 m section of the Beach Road fronting rear fence of the hotel.
The works are shown at figures 10 and 8 in the SEE and the area prior to the construction of the bleachers is shown at figure 9. There are accompanying architectural plans.
Applying the "notional development application" approach, or considering the merits (if that characterisation is regarded as superfluous as per Mineral Wealth), it is plain that the Court can be satisfied that the erection of these minor works would be entirely consistent with the objectives of the B1 zone, and in particular there is no evidence that any adverse impacts would result or be caused to the amenity of existing and future residential premises, and indeed Council does not contend otherwise.
Further as to the merits, the Statement of Evidence of Mr Stephen Cooper (acoustic consultant) indicates that in relation to noise there is no issue raised by the proposed works or structure (AB 236-262).
The erected structures are plainly an adjunct to the use of the premises as a whole as a hotel and are simply a minor rearrangement of the existing courtyard/beer garden/open air area being part of the hotel.
The power to issue a building certificate is to introduce flexibility into the planning system, and is not to be utilised in a punitive manner: Ireland v Cessnock City Council (1999) 110 LGERA 311; Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088 at [41]. 14In regard to the third point concerning whether there is an underlying consent for the use of the courtyard, the applicant's submission is that:
The Beach Road Hotel is a popular modern hotel providing accommodation, food and refreshment, which is the subject of multiple development consents and an Environmental Management Plan: AB 221-235. It has been in continuous operation for some 50 years.
Its consent allows 750 persons (as a maximum) on the ground floor and 650 persons are allowed on the first floor: see Condition 2 of DA626/2002 (also designated as L-301/2001), AB 77-81. As modified by subsequent orders of the Court, made in later s 96 modification application appeals, the development is to be carried out in accordance with an Environmental Management Plan that specifically extends to the beer garden/courtyard area: AB 83 at Condition 1 (19 November 2004), AB 90 (20 April 2007) at Condition 1, and the Environmental Management Plan at AB 226.
Development Consent DA626/2002 (LA-301/2001) required compliance with Plan 40200.02 drawn by HSA Architects. This plan clearly marks the ground floor courtyard area.

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Conclusion 21Having considered the evidence, the submissions and undertaken a view, I am satisfied from the various referred authorities that the determination of whether a Building Certificate under s 149F should be issued, can be considered independently of any issues concerning the use of the property, except where such use is prohibited. 22Consequently, I think it appropriate to follow the procedure adopted by the Senior Commissioner in Griffis, which is based on the authority in Ireland, that the Building Certificate Application determination is the first in the sequence of determination relative to any associated development application for the use of the subject premises. Therefore in the absence of any "use" application for determination, I proceed with the determination of the merits of the Building Certificate. 23Accordingly, I accept the council's concession in the precise terms of Mr Nash's written submissions that: a. Firstly, that the Court has the power to direct the Council to issue the building certificate in the exercise of discretion (it is noted that the issue of such a building certificate would not authorise the use of the beer garden/courtyard); and b. Secondly, that the "planning merits" considerations, including structural adequacy considerations, must be decided wholly in favour of the Applicant. 24Therefore, considering the provisions of s 149F and the acceptance of the structural adequacy of the works in dispute, I consider it appropriate and reasonable to make Orders for the Building Certificate to be issued. 25With regard to the separate question of any "approved use" of the courtyard area, I have considered the disparate submissions by the parties. Insofar as both parties refer to Griffis, wherein the Senior Commissioner dealt the issue of a Building Certificate and associated use of the property. That case is distinguished from the subject application because there was a current development application for use of the premise and an application for a different use. So any approved Building Certificate could apply to the existing use approval, if the concurrent development application was refused. 26In the absence of any current development application, the Applicant nevertheless has listed the various development consents for the hotel granted over the past 30 years (refer to paras 14 & 15). The various plans indicate the presence of the courtyard and the plans have been part of the conditional consents, presumably approved after appropriate site inspections where existence of the courtyard would have been obvious. But it is apparent that no order has been issued and no proceedings brought seeking to stop the courtyard use. 27Consequently, I am satisfied from the historical details in paras 14 and 15 that the courtyard has some form of implied use. In this regard I note Mr Ireland's submissions regarding the presumption of regularity and therefore do not consider the absence of any specific courtyard "use" consent, at this stage, prevents the issue of the Building Certificate. If there are issues with the use of the courtyard, it seems that the Respondent can appropriately issue s 121B Orders or seek injunctive relief to restrain that use pursuant to s 124 of the Act. The granting of the Building Certificate does not thwart any such action. Nor, on the other hand, does it implicitly approve any use of the space.

APN Outdoor (Trading) Pty Limited v Council of the City of Sydney [2011] NSWLEC 1131 (APN). 17The main points he relies upon from these judgements are: (1)Ireland No. 1; involved a consideration of various legal principles relating to the power of the local council (and the Court on an appeal) to direct the issue of a building certificate. The Council in this case accepts all of the principles outlined therein. It is relevant to note the Court's observation regarding the "indissoluble link" between a building certificate appeal and an appeal relating to the use of the building the subject of a building certificate application (Ireland No. 1 at [90]. See also Ireland No. 2 at [8]; [42] - [43]). (2)Taipan No. 1 and Taipan No. 2; related, relevantly, to an appeal in respect of the local council's refusal of a building certificate application for a boatshed building which had been unlawfully constructed without development consent. The boatshed the subject of the building certificate application had been erected to replace a previous boatshed which had been demolished. The Court in Taipan No. 1 determined as a preliminary issue, that the use of the boatshed was an "existing use" and thus its use/purpose (as opposed to the physical structure per se) had legal authority under the Environmental Planning and Assessment Act 1979. That determination was critically relevant to the outcome in Taipan No. 2, where, inter alia, the "planning merits" of the boatshed building were considered and the statutory discretion was exercised (see Taipan No. 1 at [14] and Taipan No. 2 at [16]; [36] - [39]). (3)APN; related to an appeal in respect of the local council's refusal of a building certificate application for advertising signage which had been unlawfully constructed without development consent. The Court found that because the advertising signage was prohibited under the relevant planning controls, the Court had no jurisdiction to direct, or alternatively in the exercise of its discretion would not direct, the local council to issue a building certificate in respect of such signage (at [36] - [50]). In other words, the Court found that the absence of legal authority under the Environmental Planning and Assessment Act 1979 enabling the use of the signage was decisive in refusing the building certificate application. (4)Griffis; related to 2 appeals, similar in circumstance to Ireland: a. An appeal in respect of the local council's refusal of a building certificate application relating to unlawful works to a shed which had been constructed; and b. An appeal in respect of the local council's refusal of a development application for the use of part of the shed as a rural worker's dwelling. The Court found that: a. The building certificate should not be issued if the proposed use of the shed was as a rural worker's dwelling (at [83] and [89]); and b. The building certificate could be issued for the purpose for which development consent was originally granted in respect of the shed viz for the storage of agricultural machinery and equipment to support market gardening activities (as noted at [1], when read with [83] and [84]). The Court also observed the critical relationship between a building certificate application and the legal authority under the Environmental Planning and Assessment Act 1979 for the use of the building or structure the subject of that application). 18Accordingly, Mr Nash's submissions are:

Sedgmen v Waverley Council

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (10)